Former Prime Minister Najib Tun Razak, jailed unrepresented on 23 August 2022, must allow movement on plight in jail — read remedy — and not be bogged down in the deadend for no rhyme or reason!
Commentary And Analysis . . . In law, there must be remedy. Former Prime Minister Datuk Seri Najib Tun Razak didn’t get remedy. Therein the matter lies as he sits in jail, reportedly working on PhD, since 23 August 2022.
Backdoor former Prime Minister Datuk Seri Ismail Sabri, for example, asked in Parliament in recent days for further and better particulars on the letter from the Pardon’s Board on the 29 January meet presided by Agong. Ismail wanted confirmation on whether the letter had addendum on house arrest for Najib. There has been ominous silence. The matter could only be under the Official Secrets Act 1972 (OSA’72).
It’s possible that Najib would be released on 23 August this year, albeit without remission, and placed under house arrest until 23 August 2028. This would mean allegedly tweaking the 29 January letter “secretly” in covering “flaws” on remission. It would also mean getting Najib out of the way for GE16 in late 2027. That would certainly benefit Prime Minister Datuk Seri Anwar Ibrahim and Umno President Datuk Seri Ahmad Zahid Hamidi, among others.
Under the Original 12 year sentence, Najib would be released on 23 August 2026 after remission, and ironically much later on 23 August 2028 after the sentence was halved with no remission. Najib would only be released on 23 August this year if the halving comes with remission.
Remission deducts one third of sentence. The detainee serves half the remaining sentence before release, with or without pardon. The Dr Ganja case refers.
No Witnesses
Elsewhere there are no witnesses, for example, on the blessing theory in the ongoing 1MDB-Tanore case. The case isn’t going anywhere after more than five years. The Prosecution didn’t allege that there were no checks and balances at 1MDB in the form of due diligence and forensic accounting on the money trail. The Defence hasn’t raised the issue of Najib being kept out of the loop, by Goldman Sachs and Jho Low, the latter reportedly under house arrest in Shanghai.
Discretion doesn’t exist if abuse of power can be proven.
Najib should sue Attorney General Tan Sri Tommy Thomas for abuse of power for initiating multiple cases which smack of political prosecution and political persecution. There are case laws on abuse of power from Raja Azlan Shah and, more recently, from Asian Arbitration. The Federal Court should have jailed Thomas, and fined, in default jailed further, on the Asian Arbitration case.
Najib, pending UN Review on Arbitrary Detention, should seek remedies viz. further and better particulars from the Pardons’ Board, the Istana and Agong on the halving of the 12 year jail sentence on 29 January 2024; habeas corpus application by family based on the Judge Sebli ruling on DNA, the Evidence Act 1950, CPC, and Penal Code; and Petition to the Conference of Rulers for Decree on Freedom and not Pardon. Suspended and retired Judge Datuk Hamid Sultan Abu Backer has op-ed on habeas corpus and Petition.
Professor Tan Sri Shad Faruqi has op-ed on halving of the sentence.
Jugular Vein
Najib, in seeking remedy, should find the jugular vein and slit it. Najib should neutralise Karma — the law of cause and effect — so that it exhausts itself when there’s remedy. Miracles happen when the conscience was clear i.e. sin-free for state of grace. It’s the guilty conscience that kills.
Pardon, in Malaysia, implies guilt. Pardon in the US, for example, was without prejudice i.e. no admission of liability.
Again, in law, there must be remedy.
Najib didn’t get remedy.
The court can only consider what’s placed before it. The court remains referee on issues in conflict between parties in dispute. It can’t take part in the game.
The court will not advise, guide or help parties in dispute on issues in conflict.
Another Form of Remedy for Najib
Najib can file letter of representation on the 1MDB-Tanore case based on Prosecution’s blessing theory which cannot be proven. That would be one form of remedy.
There are no witnesses on the blessing theory. Even lawyer Jasmine Loo, who purportedly prepared documents under Jho Low’s instructions for Najib’s signature, isn’t witness. No one will be Prosecution witness without plea bargaining. Loo’s role lies in helping Prosecution prove that Najib gave blessing for wrongdoing at 1MDB.
Jho Low told her to stand at Najib’s gate while he went inside for God alone knows what. There’s no proof that Najib signed the documents. Jho Low may well have visited the toilet and exited the house without ever meeting Najib. He wouldn’t dare meet Najib with documents based on being party to illegalities. Najib would set the dogs on him for insult. Jho Low wouldn’t risk failure on the mission allegedly stagemanaged by Goldman Sachs. The international merchant, deemed by Washington as too big for failure, was being reportedly probed for fraud by regulatory authorities in 14 countries excluding Malaysia.
Did Najib Sign Those Letters?
Jho Low, after leaving Najib’s place, did not immediately hand over the documents. The matter was revealed in court. Loo received the documents, purportedly signed by Najib, 24 hours later either directly or through someone.
If Defence alleges that the signatures on the documents were forged, they must prove it through subject matter expert opinion. That may be uphill task if the expert’s findings were inconclusive.
The onus lies on the Prosecution for proving its blessing theory or risk letter of representation. Loo speculating in court that Najib must have given blessing, based on Prime Minister, Finance Minister and 1MDB Advisor being one and the same person, was inadmissible hearsay. The court cannot get into circumstantial evidence and conspiracy theories.
Conviction
In the rule of law, the manner in which the accused was convicted comes first. There must be compliance on court procedures, due process and the greater emphasis on the rule of law. Conviction must be perfected in law for perfection in law.
The court, contrary to public perceptions, does not decide on cases. The court rules on decisions taken in submisson (it’s about law) on issues in conflict by parties in dispute. The Prosecution took decisions. Likewise, the Defence has taken decisions. The court cannot go off at tangent, heading for Timbuktu, and rule with impunity based on obiter dictum. Obiter Dictum has no place in ruling. Opinion isn’t law. Only the court can declare law. However, Declarations are not remedies. The court can only assist those seeking remedies.
It’s true that nine judges in three courts had the same story on the RM42m SRC International case. In the superior court, the case was about court procedures, due process, and the rule of law, and not the merits. A case, once concluded, will never be reopened unless mistrial was declared for new case before new judge. The court of law was about closure. There will be closure once litigation ends. The case in Federal Court Review can be reinstated, any number of times, each time on new grounds.
Federal Court Review
Najib’s Federal Court Review on the RM42m SRC International case on 31 March last year wasn’t reinstated despite earlier indications by the defence during press briefing.
It’s not known what transpired between Najib and the defence team, if at all, on the matter. We only know that defence didn’t file Application for Leave for Reinstatement of Judicial Review on new ground/s viz. the fact that there was only one ruling, i.e. by Federal Court Review Panel Head Judge Datuk Abdul Rahman Sebli on 31 March last year. There was no majority ruling by the other four judges on the Panel. The judges, led by Judge Datuk Vernon Ong, found that the court had no jurisdiction after defence argued the Review in oral submission for three days as Appeal, allegedly for another bite at the cherry.
The court of law must have jurisdiction, authority and power. Earlier, on the 2nd day of oral submission, Judge Ong cautioned defence that the court can only look at procedures. If there was non-compliance on procedures, due process, and the rule of law, the court can look at the merits of the case.
Judge Sebli, in ruling DNA for Najib, found that there were many transgressions against Najib. It’s for the same reason that the judge ruled that re-trial would be pointless.
Judge Sebli, in contradiction in terms, held that the RM42m SRC case was perfected in law for perfection in law. If this was about the High Court stage of the case, the jury was no longer out on the issue.
Transgressions In High Court
The High Court stage of the case was marked by many more transgressions than in the superior court.
It’s open secret that High Court Judge Dato’ Mohd Nazlan bin Mohd Ghazali didn’t recuse himself after being caught in conflict of interest situation/s, not once, but three times.
The jurisdictional and constitutional issues were never visited by the High Court.
The superior court never allowed new evidence which would have blown away Judge Nazlan. The new evidence need not be about the RM42m. The superior court, in disingenuous take, rejected the introduction of new evidence on the grounds that it wasn’t about the RM42m. The RM42m wasn’t the issue. The issue was whether Judge Nazlan should have presided over the High Court stage of the RM42m SRC International case.
Judge Nazlan’s ruling was allegedly tainted. It may have been marked by biased, hostile and mocking statements in obiter dictum.
Miscarriage of Justice
There was miscarriage of justice based on tainted ruling after mistrial.
AG Thomas could have filed civil action for freezing, seizing and forfeiting the RM42m as state revenue. The High Court has the list of nine people who received the RM42m. Instead, misled by dictatorial Prime Minister Tun Mahathir Mohamad, the AG instituted criminal suit.
The litany of woes on the RM42m SRC International case continues in the superior court. The rest remains more history.
The Court of Appeal, true to form, saw no reason for interferring with the High Court ruling. There was rush for judgment.
High Points
The high points came during the Federal Court Appeal and Federal Court Review stages.
There was no dissenting judgment by the five person panel during the Federal Court Appeal stage. Chief Justice Tun Maimun Tuan Mat, like latter day sultan, even claimed “discretion beyond discretion” on Judge Nazlan who hid behind the sarung covered ample behind. She jailed Najib, unrepresented, on 23 August 2023. There was non-compliance on procedures, due process and the rule of law.
Najib had no submission during the Federal Court Appeal stage of the case. He listened as the Prosecution did u-turn and waded into conspiracy theories.
The Prosecution, during the Federal Court Review stage of the case, was even more unscrupulous than usual. Indeed, they even outdid themselves. The Ad Hoc Prosecutor, the grapevine whispers, didn’t even collect the RM2m fees due. It seems that putting Najib in jail was satisfaction enough. No one can go any more lower than that. There’s no place for emotions in law. — NMH
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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